This is the third and last post in my mini-series on evangelical underrepresentation among the legal elite. My first post presented the claim that evangelicals are underrepresented and the second asked why this might be. To conclude, I want to ask whether it even matters and, if so, in what ways. I’ll limit myself to three somewhat random observations.
First, evangelicals don’t seem to care too much about their underrepresentation in the legal elite. Although there have been a few murmurings about the lack of an evangelical on the Supreme Court, evangelicals seem to be much more interested in judicial appointments that will vote for outcomes favored by evangelicals than on the religious identity of the appointees. Thus, for example, after the Supreme Court nomination of evangelical Harriet Miers fell apart (and to repeat a point from yesterday’s post, observe that Miers, an SMU Law grad, lacked “elite” credentials), there seemed to be no great reaction from evangelicals when John Roberts, a Catholic (who undoubtedly had elite credentials), was picked instead. The choice of Sam Alito, a Catholic, over one of the (very few) plausible evangelicals (like Mike McConnell) barely registered.
That evangelicals by and large feel “represented” by conservative Catholics in the upper echelons of the legal system is interesting in many ways. One interpretation is that evangelicals accept that viewpoint rather than identity is what matters to representation—a claim that has all sorts of implications for other kinds of “diversity” questions (i.e, do liberal whites adequately represent the interests of liberal African-Americans?).
Another implication—and I’ll go ahead and say it although I know I’ll get pushback (perhaps even assassination)—is that evangelicals care about identity, but increasingly understand evangelical and conservative Catholic identity as converging. Is it possible that, in the post-Vatican II world, evangelicals and Catholics are beginning to see themselves less as mere political allies and more as sharing a common identity in the loyal and traditionalist wing of Christendom? This is clearly happening at least at the margins (witness the growth of evangelical Catholicism and liturgical revivals within Protestant evangelicalism, for example).
A second point: Does evangelical underrepresentation in elite legal jobs matter to the way law is performed? In his wonderful book Constitutional Faith, Sandy Levinson draws parallels between the competing Catholic and Protestant traditions on textualism, authority, and tradition and similar debates in law. In Levinson’s terminology, a “Protestant” judge would assert that (scriptural) constitutional text trumps tradition and that all citizens are equally entitled to interpret the (scriptures) Constitution for themselves (i.e., paralleling the “priesthood of all believers”). By contrast, a “Catholic” judge would assert that tradition may be more important than textual exegesis and that the “priesthood” of judges are the ultimate interpreters of the Constitution.
If it were the case that Protestants in general, and evangelical Protestants in particular, were likely to follow a “Protestant” disposition as judges or other legal elites, then the underrepresentation of evangelicals might matter to the construction of law. Or, at least it would matter in the sense that legal outcomes would be systematically different if there were more evangelicals among the legal elite. But, in fact, there seems to be little evidence that judges who are Protestant, Catholic, Jewish or anything else are particularly more likely than others to follow a “Protestant” or “Catholic” approach on textualism, authority, and tradition. For example, as Levinson showed, the notoriously anti-Catholic Hugo Black scores as “Protestant” on textualism but “Catholic” on judicial authority.
Finally, if I’m not convinced that evangelicals would systematically display traditionally Protestant approaches to texts, authority, and tradition, I do think that a greater evangelical presence among the legal elite might have an important effect on the development of law in another way. The defining element of modern American evangelicalism is its individualistic experientialism, its insistence on a personal born-again experience, its adherence to what religion critic Harold Bloom defines as the key trait of any genuinely American religion—walking alone with Jesus in the wilderness. To be an evangelical means to know Jesus in the heart.
It is not hard to see the misfit between evangelicalism’s experiential epistemology and law as a rationalistic, deductive system. But to a pointy-headed legal academic like me, the portrayal of law as rationalistic and deductive seems so nineteenth century. In the post-realist, post-modern world, law is increasingly understood as personal, subjective, and even experiential. To take just one small example, the whole “expressivist” strand of contemporary legal scholarship is about how law is received, understood, internalized, and experienced.
Although evangelicals may not understand this well, modern legal thought may be very much up their alley. It would be a shame if evangelicals continued to stand on the sidelines while the legal academy, the courts, and other legal institutions worked through the implications of law in the post-modern world—something about which evangelicals should have lots to say.